Arlington, VA 22201
May 16, 2019
In reply to the Board's notice of the opportunity to submit ideas for Merit Systems studies, I suggest the Board conduct a study of comparative treatment and results achieved by labor arbitrators and MSPB administrative judges, with specific reference to adverse actions, performance-based actions, cases supporting claims for compensatory damages, and case processing times. I know of no such study in existing literature.
It is a perception that arbitrators are more likely to provide a more extensive hearing and are more likely to mitigate penalties than MSPB administrative judges. As a result, unions tend to favor labor arbitration for adverse actions. Is that perception borne out by empirical analysis?
The Federal Circuit takes the position that it conducts de novo review of the meaning of collective bargaining provisions, while the Steelworkers Trilogy suggests deference to interpretation by arbitrators of those contracts rather than de novo review by the federal courts. Is there a difference in analysis, and is it supported by the legislative history of the CSRA?
The Board and the Federal Circuit both review arbitration awards in cases otherwise appealable to the Board. An analysis of labor arbitration in the federal sector would likely be beneficial to the Federal Circuit, federal agencies, and practitioners.